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Today's Opinions: May 27, 2005Volume 11  Number 101

Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.

New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

JIMMY R. LYLE v. PASMINCO ZINC, INC.
Court:TSC - Workers Comp Panel
Attorneys:
Thomas R. Meeks and Gregory D. Smith, Clarksville, Tennessee, for
appellant, Jimmy R. Lyle.
Dan L. Nolan and Michael R. McDonner, Clarksville, Tennessee, for
appellee, Pasminco Zinc, Inc.
Judge: INMAN
First Paragraph:
This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law. The
plaintiff alleged that he has a repetitive-stress job-related
condition in his right knee diagnosed as degenerative arthritis.
Surgery was performed September 18, 1997. After giving notice in July
1999, this action was filed on March 20, 2000. The trial judge
concluded that the one-year statute of limitations precluded recovery
and granted summary judgment. We affirm.
http://www.tba.org/tba_files/TSC_WCP/2005/lylej52705.pdf

AMY BROWN YOUNG v. INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, ET
AL.
Court:TSC - Workers Comp Panel
Attorneys:
B. Timothy Pirtle, McMinnville, Tennessee, for appellants, Insurance
Company of the State of Pennsylvania and Bridgestone/Firestone, Inc.
Robert S. Peter, Winchester, Tennessee, for appellee, Amy Brown Young.
Judge: INMAN
First Paragraph:
This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law. The
plaintiff complained of wrist pain which was subjectively diagnosed as
cumulative trauma. The treating physician found no impairment, as did
neither of the first two physicians to whom the plaintiff was
referred. The third physician, Dr. Fishbein, relying on subjective
complaints, made four years after the plaintiff left her job, found a
5 percent impairment in each arm. We find the evidence preponderates
against the judgment.
http://www.tba.org/tba_files/TSC_WCP/2005/younga52705.pdf

IN RE: TENNESSEE RULES OF APPELLATE PROCEDURE
WITH APPENDIX
Court:TSC - Rules
Judge: DROWOTA
First Paragraph:
In Binkley v. Medling, 117 S.W.3d 252 (Tenn. 2003), the Supreme Court
concluded that an Advisory Commission Comment to Rule 58, Tenn. R.
Civ. P., was obsolete and that it should be removed. The Court went on
to ask the Advisory Commission on the Rules of Practice & Procedure to
"undertake a review of the various rules of procedure and to recommend
the removal of any other Advisory Commission Comments that are
obsolete or otherwise inconsistent with later amendments to the
various rules." Id. at 258.
http://www.tba.org/tba_files/TSC_Rules/2005/appellate_rules52705.pdf
APPENDIX
http://www.tba.org/tba_files/TSC_Rules/2005/appellate_rules_apx52705.pdf

IN RE: TENNESSEE RULES OF CIVIL PROCEDURE
WITH APPENDIX
Court:TSC - Rules
Judge: DROWOTA
First Paragraph:
In Binkley v. Medling, 117 S.W.3d 252 (Tenn. 2003), the Supreme Court
concluded that an Advisory Commission Comment to Rule 58, Tenn. R.
Civ. P., was obsolete and that it should be removed. The Court went on
to ask the Advisory Commission on the Rules of Practice & Procedure to
"undertake a review of the various rules of procedure and to recommend
the removal of any other Advisory Commission Comments that are
obsolete or otherwise inconsistent with later amendments to the
various rules." Id. at 258.
http://www.tba.org/tba_files/TSC_Rules/2005/civil_rules52705.pdf
APPENDIX
http://www.tba.org/tba_files/TSC_Rules/2005/civil_rules_apx52705.pdf

IN RE: TENNESSEE RULES OF EVIDENCE
WITH APPENDIX
Court:TSC - Rules
Judge: DROWOTA
First Paragraph:
In Binkley v. Medling, 117 S.W.3d 252 (Tenn. 2003), the Supreme Court
concluded that an Advisory Commission Comment to Rule 58, Tenn. R.
Civ. P., was obsolete and that it should be removed. The Court went on
to ask the Advisory Commission on the Rules of Practice & Procedure to
"undertake a review of the various rules of procedure and to recommend
the removal of any other Advisory Commission Comments that are
obsolete or otherwise inconsistent with later amendments to the
various rules." Id. at 258.
http://www.tba.org/tba_files/TSC_Rules/2005/evidence_rules52705.pdf
APPENDIX
http://www.tba.org/tba_files/TSC_Rules/2005/evidence_rules_apx52705.pdf

GLORIA KIM SMITH v. CHARLES A. PORTERA, M.D., ET AL.
Court:TCA
Attorneys:
Sam Jones, Chattanooga, Tennessee, for the Appellant, Gloria Kim
Smith.
James D. Robinson and Laura Beth Rufolo, Chattanooga, Tennessee, for
the Appellee, Charles A. Portera, M.D.
Judge: LEE
First Paragraph:
The plaintiff in this medical battery case argues that the trial court
erred in granting the defendant doctor summary judgment and argues
that a genuine issue of material fact exists as to whether she
consented to an unnamed surgical procedure in addition to scheduled
procedures named in a hospital consent form. The trial court granted
the defendant's motion for summary judgment upon findings that the
case was actually a suit for medical malpractice, rather than medical
battery, and that the plaintiff failed to present expert proof that
such surgery was not in her best interest. We vacate the judgment of
the trial court and remand for trial on the merits upon our finding
that the plaintiff's suit states a cause of action for medical
battery; and that the consent form signed by the plaintiff authorized
the additional surgery only if it was required by an unforseen
condition and whether there was an unforseen condition requiring the
additional surgery remained a genuine issue of material fact.
http://www.tba.org/tba_files/TCA/2005/smithg52705.pdf

JERRY TRULL, ET UX. v. BRAD RIDGEWAY, ET UX
Court:TCA
Attorneys:
Charles Fleet of Bolivar for Appellants, Jerry Trull and Rita Trull
David S. Hessing of Paris for Brad Ridgeway and Angie Ridgeway
Judge: CRAWFORD
First Paragraph:
Plaintiffs-landowners filed a chancery court complaint seeking to
establish ownership of a parcel of real estate which they claimed by
adverse possession. The trial court dismissed the complaint pursuant
to the provisions of T.C.A. B 28-2-110 (failure to pay real estate
taxes for twenty years) and also allowed defendants to take a
voluntary nonsuit of a counter-claim against the plaintiffs.
Plaintiffs appeal. We affirm.
http://www.tba.org/tba_files/TCA/2005/trullj52705.pdf

LARRY W.CLARK v. RICKY BELL, WARDEN
Court:TCCA
Attorneys:
Larry W. Clark, pro se, Nashville, Tennessee.
Paul G.Summers, Attorney General and Reporter; Preston Shipp,
Assistant Attorney General, for the appellee, State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
The Petitioner, Larry W. Clark, appeals from the dismissal of his
petition for the writ of habeas corpus. The State has filed a motion
requesting that the Court affirm the trial court's denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals. We find
the State's motion has merit. Accordingly, the motion is granted and
the judgment of the trial court is affirmed pursuant to Rule 20, Rules
of the Court of Criminal Appeals.
http://www.tba.org/tba_files/TCCA/2005/clarkl52705.pdf

JEREMY S. CROSBY v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Jeremy S. Crosby, Only, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Preston Shipp,
Assistant Attorney General; and Ron Davis, Franklin, Tennessee, for
the appellee, State of Tennessee.
Judge: WELLES
First Paragraph:
The Defendant, Jeremy S. Crosby, appeals from the trial court's
dismissal of his petition seeking habeas corpus relief. The State has
filed a motion requesting that this Court affirm the trial court's
denial of relief pursuant to Rule 20, Rules of the Court of Criminal
Appeals. The State's motion is granted. The judgment of the trial
court is affirmed.
http://www.tba.org/tba_files/TCCA/2005/crosbyj52705.pdf

STATE OF TENNESSEE v. ALGERNON CROSS
Court:TCCA
Attorneys:
Jennifer Lynn Thompson, Nashville, Tennessee for the appellant,
Algernon Cross.
Paul G.Summers, Attorney General and Reporter; BlindAkrawi, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General;
Pamela Anderson, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
A jury convicted the Defendant, Algernon Cross, of one count of
facilitation of possession with the intent to sell .5 grams or more of
a schedule II controlled substance and one count of unlawful
possession of a handgun by a convicted felon. The trial court
sentenced the Defendant to an effective sentence of fourteen years.
The Defendant appeals, contending that: (1) the evidence is
insufficient to sustain his convictions; (2) the trial court erred on
two of its evidentiary rulings; and (3) the trial court erred when it
sentenced him. Finding no reversible error, we affirm the judgments of
the trial court.
http://www.tba.org/tba_files/TCCA/2005/crossa52705.pdf

STATE OF TENNESSEE v. RYCINE ELLISON & MANDRELL CHRISTMON
Court:TCCA
Attorneys:
Richard McGee and James O. Martin, Nashville, Tennessee for appellant,
Rycine Ellison; Mark C. Scruggs, Nashville, Tennessee, for the
appellant, Mandrell Christmon.
Paul G. Summers, Attorney General & Reporter; Richard H.Dunavant,
Assistant Attorney General; Victor S. Johnson, District Attorney
General, and John Zimmerman, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: SMITH
First Paragraph:
The appellants, Rycine Ellison and Mandrell Christmon, appeal on a
certified question of law after their guilty pleas. On appeal, they
challenge the trial court's denial of their motions to suppress. For
the following reasons, we affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/2005/ellisonr52705.pdf

STATE OF TENNESSEE v. JEFFERY HAYES
Court:TCCA
Attorneys:
Roger E. Nell,(on appeal) District Public Defender, and Gregory
D.Smith (at trial) for the appellant, Jeffery Hayes.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; John W. Carney, Jr., District Attorney
General; and Helen Young, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: MCLIN
First Paragraph:
The defendant, Jeffery Hayes, entered an open guilty plea to one count
of the sale of less than .5 grams of cocaine, a Class C felony, two
counts of the sale of more than .5 grams of cocaine, Class B felonies,
and one count of possession with intent to sell more than .5 grams of
cocaine, a Class B felony. He was sentenced to an effective sentence
of ten years as a Range I standard offender. On appeal, he argues that
the trial court erred in imposing an excessive sentence and denying
alternative sentencing. Following our review, we affirm the judgment
of the trial court.
http://www.tba.org/tba_files/TCCA/2005/hayesj52705.pdf

STATE OF TENNESSEE v. WILLIE BOB KING
Court:TCCA
Attorneys:
Dan Bryant, Public Defender, McMinnville, Tennessee, for the
appellant, Willie Bob King.
Paul G.Summers, Attorney General and Reporter; Brent C.Cherry,
Assistant Attorney General; and Dale Potter, District Attorney
General, for the appellee, State of Tennessee.
Judge: WELLES
First Paragraph:
The Defendant was convicted by jury verdict of two counts of
aggravated burglary, two counts of aggravated assault, and misdemeanor
resisting arrest. The trial court sentenced the Defendant as a Range
II offender to ten years for each felony conviction and six months for
the misdemeanor conviction, with the first three felony conviction
sentences to be served consecutively and the remaining sentences to be
served concurrently, resulting in an effective sentence of thirty
years. On appeal, the Defendant raises four issues: 1) the evidence
was insufficient to support his two aggravated burglary convictions
and one aggravated assault conviction; 2) the trial court erred in
failing to allow the defense to impeach the testimony of one of the
State's witnesses by means of a prior juvenile conviction; 3) the
trial court erred in imposing excessive sentences in violation of
Blakelyv. Washington, 542 U.S. ___, 124 S.Ct. 2531 (2004); and 4) the
trial court erred in imposing consecutive sentences. We affirm the
judgments of the trial court
http://www.tba.org/tba_files/TCCA/2005/kingw52705.pdf

STATE OF TENNESSEE v. WILLIAM L. MILLER
Court:TCCA
Attorneys:
Roger E. Nell, District Public Defender (on appeal) and, Russel A.
Church, Assistant Public Defender (at trial) for the appellant,
William L. Miller.
Paul G.Summers, Attorney General and Reporter; Mark A.Fulks, Assistant
Attorney General; John W.Carney, Jr., District Attorney General; and
Dan Brollier, Assistant District Attorney General, for the appellee,
State of Tennessee.
Judge: MCLIN
First Paragraph:
A Montgomery County jury convicted the defendant, William L. Miller,
of possession with intent to sell over 0.5 grams of cocaine, simple
possession of marijuana, possession of drug paraphernalia, evading
arrest, assault, resisting arrest, and driving on a revoked driver's
license. The trial court ordered the defendant to serve an effective
sentence of eight years, with six days in the county jail and the
remainder to be served in Community Corrections. On appeal, the
defendant contends that the evidence was insufficient to support his
convictions for possession with intent to sell over 0.5 grams of
cocaine and assault. After reviewing the record and applicable law, we
affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/2005/millerw52705.pdf

HAROLD WAYNE SHAW v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Bruce Poag, Nashville, Tennessee, for the appellant, Harold Wayne
Shaw.
Paul G. Summers, Attorney General & Reporter; Renee W. Turner,
Assistant Attorney General; Victor S. Johnson, District Attorney
General and Dan Hamm, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: SMITH
First Paragraph:
The petitioner, Harold Wayne Shaw, was convicted by a jury of second
degree murder and aggravated kidnapping in 1996. On direct appeal,
this Court affirmed the petitioner's conviction, but remanded the case
to the trial court for resentencing. See State v. Harold Wayne Shaw,
No. 01C01-9707-CR-00259, 1998 WL 731573 (Tenn. Crim. App, at
Nashville, Oct. 21, 1998), perm. app. denied (Tenn. 1999). On remand,
the petitioner was resentenced. The petitioner appealed, challenging
his sentence for the second time, and this Court affirmed the judgment
of the trial court. See State v. Harold Wayne
Shaw,No.M1999-01119-R3-CD,2000 WL1606585 (Tenn. Crim.App., at
Nashville, Oct. 27, 2000), perm. app. denied, (Tenn. 2001). The
petitioner filed a timely petition for post-conviction relief alleging
ineffective assistance of counsel in various ways. After a hearing,
the post-conviction court denied the petition for post-conviction
relief. On appeal, the petitioner challenges the post-conviction
court's dismissal of the petition. For the followingreasons, we affirm
the judgment of the post-conviction court.
http://www.tba.org/tba_files/TCCA/2005/shawh52705.pdf

STATE OF TENNESSEE v. JOSEPH ANGEL SILVA, III
Court:TCCA
Attorneys:
Fannie J. Harris, Nashville, Tennessee for the appellant, Joseph Angel
Silva, III.
Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan,
Senior Counsel; Mike McCowen, District Attorney General; Michael D.
Randles and Ann Filer, Assistant District Attorneys General, for the
appellee, State of Tennessee.
Judge: SMITH
First Paragraph:
On July 21, 2003, the Grand Jury for Bedford County returned an
indictment against the defendant charging him with one count of
aggravated rape. After a jury trial, the defendant was convicted as
charged on October 1, 2003 and sentenced on October 27, 2003, to
twenty-two (22) years in the Department of Correction. The defendant
now appeals this conviction. He argues that (1) the trial court erred
in denying the Defendant's motion for a new trial where there is
evidence that a juror failed to disclose to the trial court after voir
dire that she had had a conversation with the Defendant's brother and
knows the brother personally; and (2) that the State violated Jencks
v. United States, 353 U.S. 657 (1957), and Brady v. Maryland, 373 U.S.
83 (1963), by failing to disclose evidence of the victim's pretrial
statement which contained exculpatory information. We conclude that
these issues are without merit and affirm the judgment of the trial
court.
http://www.tba.org/tba_files/TCCA/2005/silvaj52705.pdf

WILLIAM L. SMITH v. VIRGINIA LEWIS, WARDEN, S.T.S.R.C.F., AND STATE OF
TENNESSEE
Court:TCCA
Attorneys:
B. Jeffery Harmon, Assistant Public Defender, for the appellant,
William L. Smith.
Paul G. Summers, Attorney General & Reporter; Michelle Chapman
McIntire, Assistant Attorney General; and James Pope, III, Assistant
District Attorney General, for the appellee, State of Tennessee.
Judge: WADE
First Paragraph:
The petitioner, WilliamL. Smith, appeals the denial of his petition
for writ of habeas corpus. Because the petitioner's sentence for rape
of a child is illegal, the judgment of the habeas corpus court is
reversed, relief is granted, and the cause is remanded to the Bledsoe
County Circuit Court for transfer to the Hamilton County Criminal
Court for appropriate remedial action.
http://www.tba.org/tba_files/TCCA/2005/smithw52705.pdf

REGINALD THOMAS v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Michael A. Colavecchio, Nashville, Tennessee, for the appellant,
Reginald Thomas.
Paul G. Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General; Victor S. Johnson, III., District Attorney
General; and Brian Holmgren, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: MCLIN
First Paragraph:
The petitioner, Reginald Thomas, appeals from the trial court's denial
of post-conviction relief. The single issue presented for review is
whether the petitioner was denied the effective assistance of counsel.
After reviewing the record, we affirm the denial of post-conviction
relief.
http://www.tba.org/tba_files/TCCA/2005/thomasr52705.pdf

STATE OF TENNESSEE v. WILLIAM VANBLARICUM
Court:TCCA
Attorneys:
Philip A.Condra, District Public Defender, and David Owen McGovern,
Assistant Public Defender, for the appellant, William Vanblaricum.
Paul G.Summers, Attorney General and Reporter; Michelle Chapman
McIntire, Assistant Attorney General; James Michael Taylor, District
Attorney General; and William Bobo Copeland, Assistant District
Attorney General, for the appellee, State of Tennessee.
Judge: TIPTON
First Paragraph:
The defendant, William Vanblaricum, was convicted by a Franklin County
Circuit Court jury of driving under the influence of an intoxicant
(DUI), a Class Amisdemeanor. The trial court imposed a sentence of
eleven months, twenty-nine days, with probation after thirty days in
jail and one hundred hours of community service. The trial court also
ordered the defendant to pay a fine of $350.00. On appeal, the
defendant contends that the evidence is insufficient to support his
conviction and that his sentence is excessive. We affirm the judgment
of the trial court.
http://www.tba.org/tba_files/TCCA/2005/vanblaricumw52705.pdf

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